Exhibit 77Q1G
AGREEMENT AND PLAN OF ACQUISITION AND LIQUIDATION
BETWEEN ALLIANCE ALL-MARKET ADVANTAGE FUND, INC.
AND ALLIANCEBERNSTEIN LARGE CAP GROWTH FUND, INC.
As of August 2, 2007
This Agreement and Plan of Acquisition and Liquidation (the Plan)
is made as of this 2nd day of August, 2007, by and between
AllianceBernstein Large Cap Growth Fund, Inc. (Large Cap Growth),
a Maryland corporation, and Alliance All-Market Advantage Fund, Inc.
(the Acquired Fund), a Maryland corporation.
WHEREAS, Large Cap Growth is an open-end management investment
company registered with the Securities and Exchange Commission
(the SEC) under the Investment Company Act of 1940, as amended
(the 1940 Act), and the Securities Exchange Act of 1934, as
amended (the 1934 Act);
WHEREAS, the Acquired Fund is a closed-end management investment
company registered with the SEC under the 1940 Act and the 1934
Act, and shares of common stock of which Fund are currently
purchased and sold on the New York Stock Exchange (the NYSE);
WHEREAS, the parties desire that Large Cap Growth acquire the
assets and assume the liabilities of the Acquired Fund in exchange
for shares of equal net asset value of Large Cap Growth and the
distribution of such shares of Large Cap Growth to the Stockholders
of the Acquired Fund (the Acquisition) and that the Acquired Fund
thereafter liquidate and dissolve; and
WHEREAS, the parties intend that the Acquisition qualify as a
reorganization within the meaning of Section 368(a) of the United
States Internal Revenue Code of 1986, as amended (the Code), and
any successor provisions, and that with respect to the Acquisition,
Large Cap Growth and the Acquired Fund will each be a party to a
reorganization within the meaning of Section 368(b) of the Code;
Now, therefore, Large Cap Growth and the Acquired Fund agree as
follows:
1.Definitions
In addition to the terms elsewhere defined herein, each of the
following terms shall have the meaning indicated for that term
as follows:
1933 Act Securities Act of 1933, as amended.
Large Cap Growth Share A share of Class A common stock of Large
Cap Growth.
Assets All assets of any kind and all interests, rights, privileges
and powers of or attributable to the Acquired Fund or its shares,
as appropriate, whether or not determinable at the appropriate
Effective Time and wherever located, including, without limitation,
all cash, cash equivalents, securities, claims (whether absolute or
contingent, known or unknown, accrued or unaccrued or conditional
or unmatured), contract rights and receivables (including dividend
and interest receivables) owned by the Acquired Fund or
attributable to its shares and any deferred or prepaid expense,
other than unamortized organizational expenses, shown as an asset
on the Acquired Funds books.
Closing Date Shall be on such other date following the date that
Stockholders of the Acquired Fund approve the Plan as the parties
may agree.
Effective Time 5:00 p.m., Eastern Time, on the Closing Date, or
such other time as the parties may agree to in writing.
Financial Statements The audited financial statements of the
relevant Fund for its most recently completed fiscal year and,
if applicable, the unaudited financial statements of that Fund
for its most recently completed semi-annual period.
Fund Large Cap Growth and/or the Acquired Fund, as the case may be.
Liabilities All liabilities, expenses and obligations of any kind
whatsoever of the Acquired Fund, whether known or unknown, accrued
or unaccrued, absolute or contingent or conditional or unmatured,
except that expenses of the Acquisition contemplated hereby to be
paid by the Acquired Fund pursuant to Section 24 of the Plan and
which shall not be assumed or paid by the Large Cap Growth shall
not fall within the definition of Liabilities for purposes of
this Plan.
N-14 Registration Statement The Registration Statement of Large Cap
Growth on Form N-14 under the 1940 Act that will register the
Large Cap Growth Shares to be issued in the Acquisition and will
include the proxy materials necessary for the Stockholders of the
Acquired Fund to approve the Acquisition.
Valuation Time The close of regular session trading on the NYSE
on the Closing Date, when for purposes of the Plan, Large Cap
Growth determines its net asset value per Large Cap Growth Share
and the Acquired Fund determines the net value of the Assets.
NAV A Funds net asset value is calculated by valuing and totaling
assets and then subtracting liabilities and then dividing the
balance by the number of shares that are outstanding.
2.Regulatory Filings
Large Cap Growth shall promptly prepare and file the N-14
Registration Statement with the SEC, and Large Cap Growth and the
Acquired Fund also shall make any other required or appropriate
filings with respect to the actions contemplated hereby.
3.Stockholder Action
As soon as practicable after the effective date of the N-14
Registration Statement, the Acquired Fund shall hold a
Stockholders meeting to consider and approve the Acquisition
and this Plan and such other matters as the Board of Directors
may determine. Such approval by the Stockholders of the Acquired
Fund shall, to the extent necessary to permit the consummation of
the transactions contemplated herein without violating any
investment objective, policy or restriction of the Acquired Fund,
be deemed to constitute approval by the Stockholders of a
temporary amendment of any investment objective, policy or
restriction that would otherwise be inconsistent with or violated
upon the consummation of such transactions solely for the purpose
of consummating such transactions.
4.Transfer of the Acquired Funds Assets
Large Cap Growth and the Acquired Fund shall take the following
steps with respect to the Acquisition, as applicable:
(a) On or prior to the Closing Date, the Acquired Fund shall pay
or provide for the payment of all of the Liabilities, expenses,
costs and charges of or attributable to the Acquired Fund that
are known to the Acquired Fund and that are due and payable prior
to or as of the Closing Date.
(b) Prior to the Effective Time, except to the extent prohibited
by Rule 19b-1 under the 1940 Act, the Acquired Fund will declare
to Acquired Fund Stockholders of record a dividend or dividends
which, together with all previous such dividends, shall have the
effect of distributing (a)all the excess of (i)Acquired Funds
investment income excludable from gross income under Section
103(a) of the Code over (ii) Acquired Funds deductions disallowed
under Sections 265 and 171(a)(2) of the Code, (b) all of Acquired
Funds investment company taxable income (as defined in Code
Section 852), (computed in each case without regard to any
deduction for dividends paid), and (c) all of Acquired Funds net
realized capital gain (as defined in Code Section 1222), if any
(after reduction for any capital loss carryover), in each case
for both the taxable year ending on September 30, 2007, and for
the short taxable year beginning on October 1, 2007, and ending
on the Closing Date. Such dividends will be declared and paid
to ensure continued qualification of the Acquired Fund as a
regulated investment company for tax purposes and to eliminate
fund-level tax.
(c) At the Effective Time, pursuant to Articles of Transfer
accepted for record by the State Department of Assessments
and Taxation of Maryland (the SDAT), the Acquired Fund shall
assign, transfer, deliver and convey the Assets to Large Cap
Growth, subject to the Liabilities. Large Cap Growth shall
then accept the Assets and assume the Liabilities such that
at and after the Effective Time (i) the Assets at or after
the Effective Time shall become and be assets of Large Cap
Growth, and (ii)the Liabilities at the Effective Time shall
attach to Large Cap Growth, and shall be enforceable against
Large Cap Growth to the same extent as if initially incurred
by Large Cap Growth.
(d) Within a reasonable time prior to the Closing Date, the
Acquired Fund shall provide, if requested, a list of the Assets
to Large Cap Growth. The Acquired Fund may sell any asset on
such list prior to the Effective Time. After the Acquired Fund
provides such list, the Acquired Fund will not acquire any
additional securities or permit to exist any encumbrances,
rights, restrictions or claims not reflected on such list,
without the approval of Large Cap Growth. Within a reasonable
time after receipt of the list and prior to the Closing Date,
Large Cap Growth will advise the Acquired Fund in writing of
any investments shown on the list that Large Cap Growth has
determined to be inconsistent with its investment objective,
policies and restrictions. The Acquired Fund will dispose of
any such securities prior to the Closing Date to the extent
practicable and consistent with applicable legal requirements,
including the Acquired Funds investment objectives, policies
and restrictions. In addition, if Large Cap Growth determines
that, as a result of the Acquisition, Large Cap Growth would
own an aggregate amount of an investment that would exceed a
percentage limitation applicable to Large Cap Growth, Large
Cap Growth will advise the Acquired Fund in writing of any
such limitation and the Acquired Fund shall dispose of a
sufficient amount of such investment as may be necessary to
avoid the limitation as of the Effective Time, to the extent
practicable and consistent with applicable legal requirements,
including the Acquired Funds investment objectives, policies
and restrictions.
(e) The Acquired Fund shall assign, transfer, deliver and convey
the Assets to Large Cap Growth at the Effective Time on the
following basis:
(1) The value of the Assets less the Liabilities, both determined
as of the Valuation Time, shall be divided by the then NAV of
one Large Cap Growth Share, and, in exchange for the transfer
of the Assets, Large Cap Growth shall simultaneously issue and
deliver to the Acquired Fund the number of full Large Cap Growth
Shares so determined that are allocable to all shares held by or
for those stockholders of the Acquired Fund on a stockholder by
stockholder basis plus fractional Large Cap Growth Shares,
rounded to the third decimal place or such other decimal place
as the parties may agree to in writing;
(2) The NAV of the Large Cap Growth Shares to be delivered to
the Acquired Fund shall be determined as of the Valuation Time
in accordance with Large Cap Growths then applicable valuation
procedures, and the net value of the Assets to be conveyed to
Large Cap Growth shall be determined as of the Valuation Time
in accordance with the then applicable valuation procedures of
the Acquired Fund; and
(3) The portfolio securities of the Acquired Fund shall be made
available by the Acquired Fund to State Street Bank and Trust
Company, as custodian for Large Cap Growth (the Custodian), for
examination no later than five business days preceding the
Valuation Time. On the Closing Date, such portfolio securities
and all the Acquired Funds cash shall be delivered by the
Acquired Fund to the Custodian for the account of Large Cap
Growth, such portfolio securities to be duly endorsed in proper
form for transfer in such manner and condition as to constitute
good delivery thereof in accordance with the custom of brokers or,
in the case of portfolio securities held in the U.S. Treasury
Departments book-entry system or by The Depository Trust Company,
Participants Trust Company or other third party depositories, by
transfer to the account of the Custodian in accordance with Rule
17f-4, Rule 17f-5 or Rule 17f-7, as the case may be, under the
1940 Act and accompanied by all necessary federal and state
stock transfer stamps or a check for the appropriate purchase
price thereof. The cash delivered shall be in the form of
currency or certified or official bank checks, payable to the
order of the Custodian or shall be wired to an account pursuant
to instructions provided by Large Cap Growth.
(f) Promptly after the Closing Date, the Acquired Fund will
deliver to Large Cap Growth a Statement of Assets and Liabilities
of the Acquired Fund as of the Closing Date.
5. Liquidation and Dissolution of the Acquired Fund, Registration
of Large Cap Growth Shares and Access to Record
The Acquired Fund and Large Cap Growth also shall take the
following steps, as applicable:
(a) At or as soon as reasonably practical after the Effective
Time, the Acquired Fund shall liquidate and dissolve by
transferring pro rata to its Stockholders of record, the Large
Cap Growth Shares it receives pursuant to Section 4(e)(1) of this
Plan. Large Cap Growth shall establish accounts on its share
records and note on such accounts the names of the former
Acquired Fund Stockholders and the amounts of Large Cap Growth
Shares that former Acquired Fund Stockholders are due based on
their respective holdings of shares of the Acquired Fund as of
the close of business on the Closing Date. Large Cap Growth
shall not issue certificates representing Large Cap Growth Shares
in connection with such exchange. All issued and outstanding
shares in connection with such exchange will be simultaneously
cancelled on the books of the Acquired Fund. Ownership of Large
Cap Growth Shares will be shown on the books of Large Cap
Growths transfer agent.
Following distribution by the Acquired Fund to its Stockholders
of all Large Cap Growth Shares delivered to the Acquired Fund,
the Acquired Fund shall wind up its affairs and shall take all
steps as are necessary and proper to dissolve as soon as is
reasonably possible after the Effective Time.
(b) At and after the Closing Date, the Acquired Fund shall provide
Large Cap Growth and its transfer agent with immediate access
to: (i)all records containing the names, addresses and taxpayer
identification numbers of all of the Acquired Funds Stockholders
and the number and percentage ownership of the outstanding shares
of the Acquired Fund owned by Stockholders as of the Effective
Time, and (ii)all original documentation (including all applicable
Internal Revenue Service forms, certificates, certifications and
correspondence) relating to the Acquired Fund Stockholders taxpayer
identification numbers and their liability for or exemption from
back-up withholding. The Acquired Fund shall preserve and maintain,
or shall direct its service providers to preserve and maintain,
records with respect to the Acquired Fund as required by Section
31 of, and Rules 31a-1 and 31a-2 under, the 1940 Act.
6.Certain Representations and Warranties of the Acquired Fund
The Acquired Fund represents and warrants to Large Cap Growth as
follows:
(a) The Acquired Fund is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Maryland. The Acquired Fund is registered with the SEC as a
closed-end management investment company under the 1940 Act and
is duly registered with the SEC under the 1934 Act, and such
registrations will be in full force and effect as of the Effective
Time.
(b) The Acquired Fund has the power and all necessary federal,
state and local qualifications and authorizations to own all
of the Assets, to carry on its business, to enter into this Plan
and to consummate the transactions contemplated herein.
(c) The Board of Directors of the Acquired Fund has duly authorized
the execution and delivery of this Plan and the transactions
contemplated herein. Duly authorized officers of the Acquired Fund
have executed and delivered the Plan. The Plan represents a valid
and binding contract, enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency,
reorganization, arrangement, moratorium, and other similar laws
of general applicability relating to or affecting creditors
rights and to general equity principles. The execution and
delivery of this Plan does not, and, subject to the approval
of Stockholders referred to in Section3 hereof, the consummation
of the transactions contemplated by this Plan will not, violate
the Acquired Funds Charter, its Bylaws or any material agreement
to which the Acquired Fund is subject. Except for the approval of
its Stockholders, the Acquired Fund does not need to take any
other action to authorize its officers to effectuate this Plan
and the transactions contemplated herein.
(d) The Acquired Fund has qualified as a regulated investment
company under Part I of Subchapter M of Subtitle A, Chapter 1,
of the Code, in respect of each taxable year since the
commencement of its operations and intends to continue to qualify
as a regulated investment company for its taxable year ending upon
its liquidation.
(e) The information pertaining to the Acquired Fund included
within the N-14 Registration Statement when filed with the SEC,
when Part A of the N-14 Registration Statement is distributed
to Stockholders, at the time of the Stockholder meeting of the
Acquired Fund for approval of the Acquisition and at the
Effective Time, insofar as it relates to the Acquired Fund,
shall (i)comply in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act and the 1940 Act, and
the rules and regulations thereunder and applicable state
securities laws, and (ii)not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein
not misleading.
(f) The Acquired Fund has duly authorized and validly issued all
of its issued and outstanding shares of common stock, and all
such shares are fully paid and non-assessable and were offered for
sale and sold in conformity with the registration requirements of
all applicable federal and state securities laws. There are no
outstanding options, warrants or other rights to subscribe for
or purchase any of the shares of the Acquired Fund, nor are there
any securities convertible into shares of the Acquired Fund.
(g) The Acquired Fund shall operate its business in the ordinary
course between the date hereof and the Effective Time. Such
ordinary course of business will include the declaration and
payment of customary dividends and distributions and any other
dividends and distributions referred to in Section4(b) hereof.
(h) At the Effective Time, the Acquired Fund will have good and
marketable title to the Assets and full right, power and
authority to assign, transfer, deliver and convey the Assets.
(i) The Financial Statements of the Acquired Fund, a copy of
which has been previously delivered to Large Cap Growth, fairly
present the financial position of the Acquired Fund as of the
Acquired Funds most recent fiscal year end and the results of
the Acquired Funds operations and changes in the Acquired Funds
net assets for the periods indicated.
(j) To the knowledge of the Acquired Fund, the Acquired Fund has
no liabilities, whether or not determined or determinable, other
than the Liabilities disclosed or provided for in its Financial
Statements or Liabilities incurred in the ordinary course of
business subsequent to the date of the most recent Financial
Statement referencing Liabilities.
(k) To the knowledge of the Acquired Fund, except as has been
disclosed in writing to Large Cap Growth, no claims, actions,
suits, investigations or proceedings of any type are pending or
threatened against the Acquired Fund or any of its properties or
assets or any person whom the Acquired Fund may be obligated to
indemnify in connection with such litigation, proceeding or
investigation. Subject to the foregoing, there are no facts that
the Acquired Fund has reason to believe are likely to form the
basis for the institution of any such claim, action, suit,
investigation or proceeding against the Acquired Fund. The
Acquired Fund is not a party to nor subject to the provisions
of any order, decree or judgment of any court or governmental
body that adversely affects, or is reasonably likely to adversely
affect, its financial condition, results of operations, or the
Assets or its ability to consummate the transactions contemplated
by the Plan.
(l) Except for agreements entered into or granted in the ordinary
course of its business, in each case under which no material
default exists, and this Plan, the Acquired Fund is not a party
to or subject to any material contract or other commitments,
which if terminated, may result in material liability to the
Acquired Fund or under which (whether or not terminated) any
material payment for periods subsequent to the Closing Date
will be due from the Acquired Fund.
(m) The Acquired Fund has filed its federal income tax returns,
copies of which have been previously made available to Large Cap
Growth, for all taxable years for which such returns are due
and has paid all taxes payable pursuant to such returns. All
of the Acquired Funds tax liabilities will have been adequately
provided for on its books. No such return is currently under
audit and no unpaid assessment has been asserted with respect
to such returns. To the best of the Acquired Funds knowledge,
it will not have any tax deficiency or liability asserted
against it or question with respect thereto raised, and it will
not be under audit by the Internal Revenue Service or by any
state or local tax authority for taxes in excess of those
already paid. The Acquired Fund will timely file its federal
income tax return for each subsequent taxable year including
its current taxable year.
(n) For federal income tax purposes, the Acquired Fund qualifies
as a regulated investment company, and the provisions of
Sections 851 through 855 of the Code apply to the Acquired
Fund for the remainder of its current taxable year beginning
October1, 2006, and will continue to apply through the Closing
Date.
(o) Since the date of the Financial Statements of the Acquired
Fund, there has been no material adverse change in its financial
condition, results of operations, business, or Assets. For this
purpose, negative investment performance shall not be considered
a material adverse change.
(p) The Acquired Funds investment operations from inception to
the date hereof have been in compliance in all material respects
with the investment policies and investment restrictions set
forth in its prospectus or prospectuses and statement or
statements of additional information as in effect from time to
time, except as previously disclosed in writing to the Large Cap
Growth.
(q) The Large Cap Growth Shares to be issued to the Acquired Fund
pursuant to paragraph 4(e)(1) will not be acquired for the
purpose of making any distribution thereof other than to the
Acquired Fund Stockholders as provided in paragraph 4(e)(1).
(r) The Acquired Fund, or its agents, (i)holds a valid Form
W-8BEN, Certificate of Foreign Status of Beneficial Owner for
United States Withholding (or other appropriate series of Form
W-8, as the case may be) or Form W-9, Request for Taxpayer
Identification Number and Certification, for each Acquired
Fund Stockholder of record, which Form W-8 or Form W-9 can be
associated with reportable payments made by the Acquired Fund
to such Stockholder, and/or (ii)has otherwise timely instituted
the appropriate backup withholding procedures with respect to
such Stockholder as provided by Section3406 of the Code and the
regulations thereunder.
7. Certain Representations and Warranties of Large Cap Growth
Large Cap Growth represents and warrants to the Acquired Fund
as follows:
(a) Large Cap Growth is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Maryland. Large Cap Growth is registered with the SEC as an
open-end management investment company under the 1940 Act and
is duly registered with the SEC under the 1934 Act, and such
registrations will be in full force and effect as of the
Effective Time.
(b) Large Cap Growth shall operate its business in the ordinary
course between the date hereof and the Effective Time. Such
ordinary course of business will include the declaration and
payment of customary dividends and distributions.
(c) Large Cap Growth has the power and all necessary federal,
state and local qualifications and authorizations to own all
of its assets, to carry on its business, to enter into this
Plan and to consummate the transactions contemplated herein.
(d) The Board of Directors of Large Cap Growth has duly
authorized execution and delivery of this Plan and the
transactions contemplated herein. Duly authorized officers
of Large Cap Growth have executed and delivered the Plan. The
Plan represents a valid and binding contract, enforceable in
accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, arrangement, moratorium
and other similar laws of general applicability relating to or
affecting creditors rights and to general equity principles.
The execution and delivery of this Plan does not, and the
consummation of the transactions contemplated by this Plan
will not violate the Charter of Large Cap Growth, its Bylaws
or any material agreement to which Large Cap Growth is subject.
Except for the approval of its Board, Large Cap Growth does not
need to take any other action to authorize its officers to
effectuate the Plan and the transactions contemplated herein.
(e) Large Cap Growth has qualified as a regulated investment
company under Part I of Subchapter M of Subtitle A, Chapter 1,
of the Code, in respect of each taxable year since the
commencement of its operations and qualifies and intends to
continue to qualify as a regulated investment company for its
current taxable year.
(f) The N-14 Registration Statement, when filed with the SEC,
when Part A of the N-14 Registration Statement is distributed
to Stockholders, at the time of the Stockholder meeting of the
Acquired Fund for approval of the Acquisition and at the
Effective Time, insofar as it relates to Large Cap Growth,
shall (i)comply in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act and the 1940 Act,
and the rules and regulations thereunder and applicable state
securities laws and (ii)not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein,
in light of the circumstances under which they were made,
not misleading.
(g) Large Cap Growth has duly authorized and validly issued all
issued and outstanding Large Cap Growth Shares, and all such
shares are fully paid and non-assessable and were offered for
sale and sold in conformity with the registration requirements
of all applicable federal and state securities laws. Large Cap
Growth has duly authorized the Large Cap Growth Shares referred
to in Section4(e) hereof to be issued and delivered to the
Acquired Fund as of the Effective Time. When issued and delivered,
such Large Cap Growth Shares shall be validly issued, fully
paid and non-assessable, and no Stockholder of Large Cap Growth
shall have any preemptive right of subscription or purchase in
respect of any such share. There are no outstanding options,
warrants or other rights to subscribe for or purchase any Large
Cap Growth Shares, nor are there any securities convertible into
Large Cap Growth Shares.
(h) To the knowledge of Large Cap Growth, except as has been
disclosed in writing to the Acquired Fund, no claims, actions,
suits, investigations or proceedings of any type are pending or
threatened against Large Cap Growth or any of its properties or
assets or any person whom Large Cap Growth may be obligated to
indemnify in connection with such litigation, proceeding or
investigation. Subject to the foregoing, there are no facts
that Large Cap Growth currently has reason to believe are likely
to form the basis for the institution of any such claim, action,
suit, investigation or proceeding against Large Cap Growth. Large
Cap Growth is not a party to or subject to the provisions of any
order, decree or judgment of any court or governmental body that
adversely affects, or is reasonably likely to adversely affect
its financial condition, results of operations, its assets or
its ability to consummate the transactions contemplated by
this Plan.
(i) Except for agreements entered into or granted in the ordinary
course of its business, in each case under which no material
default exists, Large Cap Growth is not a party to or subject
to any material contract, debt instrument, employee benefit
plan, lease, franchise, license or permit of any kind or
nature whatsoever.
(j) Large Cap Growth has filed its federal income tax returns,
copies of which have been previously made available to the
Acquired Fund, for all taxable years for which such returns
are due and has paid all taxes payable pursuant to such returns.
All of Large Cap Growths tax liabilities will have been
adequately provided for on its books. No such return is
currently under audit and no unpaid assessment has been
asserted with respect to such returns. To the best of Large
Cap Growths knowledge, it will not have any tax deficiency
or liability asserted against it or question with respect
thereto raised, and it will not be under audit by the Internal
Revenue Service or by any state or local tax authority for
taxes in excess of those already paid. Large Cap Growth will
timely file its federal income tax return for each subsequent
taxable year including its current taxable year.
(k) For federal income tax purposes, Large Cap Growth qualifies
as a regulated investment company, and the provisions of
Sections 851 through 855 of the Code apply to Large Cap Growth
for the remainder of its current taxable year beginning August 1,
2007, and will continue to apply through the Closing Date.
(l) The Financial Statements of Large Cap Growth, a copy of which
has been previously delivered to the Acquired Fund, fairly
present the financial position of Large Cap Growths most recent
fiscal year end and the results of Large Cap Growths operations
and changes in Large Cap Growths net assets for the period
indicated.
(m) Since the date of the Financial Statements of Large Cap
Growth, there has been no material adverse change in its
financial condition, results of operations, business or
assets. Negative investment performance shall not be considered
a material adverse change.
(n) Large Cap Growths investment operations from inception
to the date hereof have been in compliance in all material
respects with the investment policies and investment restrictions
set forth in its prospectus or prospectuses and statement or
statements of additional information as in effect from time to
time, except as previously disclosed in writing to the Acquired
Fund.
(o) Large Cap Growth will use all reasonable efforts to obtain
the approvals and authorizations required by the 1933 Act, the
1940 Act and such other state securities laws as it may deem
appropriate in order to continue its operations after the
Closing Date.
8. Conditions to the Obligations of Large Cap Growth and the
Acquired Fund
The obligations of Large Cap Growth and the Acquired Fund with
respect to the Acquisition shall be subject to the following
conditions precedent:
(a) The Stockholders of the Acquired Fund shall have approved
the Acquisition in the manner required by the Charter of the
Acquired Fund, its Bylaws and applicable law. If Stockholders
of the Acquired Fund fail to approve the Acquisition as required,
that failure shall release the Funds of their obligations under
this Plan.
(b) Large Cap Growth and the Acquired Fund shall have delivered
to the other party a certificate dated as of the Closing Date
and executed in its name by its Secretary or an Assistant
Secretary, in a form reasonably satisfactory to the receiving
party, stating that the representations and warranties of Large
Cap Growth or the Acquired Fund, as applicable, in this Plan
that apply to the Acquisition are true and correct in all
material respects at and as of the Valuation Time.
(c) Large Cap Growth and the Acquired Fund shall have performed
and complied in all material respects with each of its
representations and warranties required by this Plan to be
performed or complied with by it prior to or at the Valuation
Time and the Effective Time.
(d) There has been no material adverse change in the financial
condition, results of operations, business, properties or assets
of Large Cap Growth or the Acquired Fund since the date of the
most recent Financial Statement. Negative investment performance
shall not be considered a material adverse change.
(e) Large Cap Growth and the Acquired Fund shall have received
an opinion of Seward& Xxxxxx LLP reasonably satisfactory to each
of them, substantially to the effect that for federal income tax
purposes:
(1) the Acquisition will constitute a reorganization within the
meaning of Section368(a) of the Code and that Large Cap Growth
and the Acquired Fund will each be a party to a reorganization
within the meaning of Section368(b) of the Code;
(2) a Stockholder of the Acquired Fund will recognize no gain or
loss on the exchange of the Stockholders shares of the Acquired
Fund solely for Large Cap Growth Shares;
(3) neither the Acquired Fund nor Large Cap Growth will recognize
any gain or loss upon the transfer of all of the Assets to Large
Cap Growth in exchange for Large Cap Growth Shares and the
assumption by Large Cap Growth of the Liabilities pursuant to
this Plan or upon the distribution of Large Cap Growth Shares
to Stockholders of the Acquired Fund in exchange for their
respective shares of the Acquired Fund;
(4) the holding period and tax basis of the Assets acquired
by Large Cap Growth will be the same as the holding period and
tax basis that the Acquired Fund had in such Assets
immediately prior to the Acquisition;
(5) the aggregate tax basis of Large Cap Growth Shares received
in connection with the Acquisition by each Stockholder of the
Acquired Fund (including any fractional share to which the
Stockholder may be entitled) will be the same as the aggregate
tax basis of the shares of the Acquired Fund surrendered in
exchange therefore, increased by any gain recognized on the
exchange;
(6) the holding period of Large Cap Growth Shares received in
connection with the Acquisition by each Stockholder of the
Acquired Fund (including any fractional share to which the
Stockholder may be entitled) will include the holding period
of the shares of the Acquired Fund surrendered in exchange
therefor, provided that such Acquired Fund shares constitute
capital assets in the hands of the Stockholder as of the
Closing Date;
(7) Large Cap Growth will succeed to the capital loss carryovers
of the Acquired Fund, if any, under Section381 of the Code, but
the use by Large Cap Growth of any such capital loss carryovers
(and of capital loss carryovers of Large Cap Growth) may be
subject to limitation under Section383 of the Code; and
(8) any gain or loss realized by a Stockholder of the Acquired
Fund upon the sale of a fractional share of Large Cap Growth
to which the Stockholder is entitled will be recognized to the
Stockholder and measured by the difference between the amount
of cash received and the basis of the fractional share and,
provided that the Acquired Fund shares surrendered constitute
capital assets in the hands of the Stockholder, will be a
capital gain or loss.
The opinion will be based on certain factual certifications made
by officers of the Funds and will also be based on customary
assumptions and subject to certain qualifications. The opinion
is not a guarantee that the tax consequences of the Acquisition
will be as described above.
Notwithstanding this subparagraph (e), Seward& Xxxxxx LLP will
express no view with respect to the effect of the Acquisition
on any transferred asset as to which any unrealized gain or
loss is required to be recognized at the end of a taxable year
(or on the termination or transfer thereof) under federal
income tax principles. Each Fund shall agree to make and
provide additional factual representations to Seward& Xxxxxx
LLP with respect to the Funds, that are reasonably necessary
to enable Seward& Xxxxxx LLP to deliver the tax opinion.
Notwithstanding anything in this Plan to the contrary, neither
Fund may waive in any material respect the conditions set forth
under this subparagraph (e).
(f) The N-14 Registration Statement shall have become effective
under the 1933 Act as to the Large Cap Growth Shares, and the
SEC shall not have instituted and, to the knowledge of Large
Cap Growth, is not contemplating instituting any stop order
suspending the effectiveness of the N-14 Registration Statement.
(g) No action, suit or other proceeding shall be threatened or
pending before any court or governmental agency in which it is
sought to restrain or prohibit, or obtain damages or other
relief in connection with, the Acquisition.
(h) The SEC shall not have issued any unfavorable advisory report
under Section25(b) of the 1940 Act nor instituted any proceeding
seeking to enjoin consummation of the Acquisition under Section
25(c) of the 1940 Act.
(i) Neither party shall have terminated this Plan with respect
to the Acquisition pursuant to Section13 of this Plan.
9. Conditions to the Obligations of the Acquired Fund
The obligations of the Acquired Fund with respect to the
Acquisition shall be subject to the following conditions
precedent:
(a) The Acquired Fund shall have received an opinion of
Seward& Xxxxxx LLP, counsel to Large Cap Growth, in form
and substance reasonably satisfactory to the Acquired Fund
and dated as of the Closing Date, substantially to the effect
that:
(1) Large Cap Growth is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Maryland and is an open-end, management investment company
registered under the 1940 Act and duly registered under the
1934 Act;
(2) This Plan has been duly authorized, executed and delivered
by Large Cap Growth and, assuming the N-14 Registration Statement
referred to in Section2 of this Plan does not contain any
material misstatements or omissions, and assuming due
authorization, execution and delivery of this Plan by the
Acquired Fund, represents a legal, valid and binding contract,
enforceable in accordance with its terms, subject to the effect
of bankruptcy, insolvency, moratorium, fraudulent conveyance and
transfer and similar laws relating to or affecting creditors
rights generally and court decisions with respect thereto, and
further subject to the application of equitable principles in
any proceeding, whether at law or in equity or with respect to
the enforcement of provisions of the Plan and the effect of
judicial decisions which have held that certain provisions are
unenforceable when their enforcement would violate an implied
covenant of good faith and fair dealing or would be commercially
unreasonable or when default under the Plan is not material;
(3) The Large Cap Growth Shares to be delivered as provided for
by this Plan are duly authorized and upon delivery will be validly
issued, fully paid and non-assessable by Large Cap Growth;
(4) The execution and delivery of this Plan did not, and the
consummation of the Acquisition will not, violate the Charter
of Large Cap Growth, its Bylaws or any agreement of Large Cap
Growth known to such counsel, after reasonable inquiry; and
(5) To the knowledge of such counsel, no consent, approval,
authorization or order of any federal or state court or
administrative or regulatory agency, other than the acceptance
of record of Articles of Transfer by the SDAT, is required for
Large Cap Growth to enter into this Plan or carry out its terms,
except those that have been obtained under the 1933 Act,
the 1934 Act, the 1940 Act and the rules and regulations
under those Acts or that may be required under state
securities laws or subsequent to the Effective Time or
when the failure to obtain the consent, approval, authorization
or order would not have a material adverse effect on the
operation of Large Cap Growth.
In rendering such opinion, Seward& Xxxxxx LLP may (i)rely on the
opinion of Xxxxxxx LLP as to matters of Maryland law to the extent
set forth in such opinion, (ii)make assumptions regarding the
authenticity, genuineness and/or conformity of documents and
copies thereof without independent verification thereof,
(iii)limit such opinion to applicable federal and state law,
(iv)define the word knowledge and related terms to mean the
knowledge of attorneys then with such firm who have devoted
substantive attention to matters directly related to this Plan
and (v)rely on certificates of officers or directors of Large
Cap Growth as to factual matters.
(b) The Acquired Fund shall have received a letter from
AllianceBernstein L.P. (the Adviser) with respect to insurance
matters in form and substance satisfactory to the Acquired Fund.
10. Conditions to the Obligations of Large Cap Growth
The obligations of Large Cap Growth with respect to the
Acquisition shall be subject to the following conditions
precedent:
(a) Large Cap Growth shall have received an opinion of Seward&
Xxxxxx LLP, counsel to the Acquired Fund, in form and substance
reasonably satisfactory to Large Cap Growth and dated as of the
Closing Date, substantially to the effect that:
(1) The Acquired Fund is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Maryland and is a closed-end management investment company
registered under the 1940 Act and duly registered under the
1934 Act;
(2) This Plan has been duly authorized, executed and delivered
by the Acquired Fund and, assuming the N-14 Registration
Statement referred to in Section2 of this Plan does not contain
any material misstatements or omissions, and assuming due
authorization, execution and delivery of this Plan by Large
Cap Growth, represents a legal, valid and binding contract,
enforceable in accordance with its terms, subject to the effect
of bankruptcy, insolvency, moratorium, fraudulent conveyance and
transfer and similar laws relating to or affecting creditors
rights generally and court decisions with respect thereto, and
further subject to the application of equitable principles in
any proceeding, whether at law or in equity or with respect to
the enforcement of provisions of the Plan and the effect of
judicial decisions which have held that certain provisions are
unenforceable when their enforcement would violate an implied
covenant of good faith and fair dealing or would be commercially
unreasonable or when default under the Plan is not material;
(3) The execution and delivery of this Plan did not, and the
consummation of the Acquisition will not, violate the Charter
of the Acquired Fund, its Bylaws or any agreement of the Acquired
Fund known to such counsel, after reasonable inquiry, and no
approval of the Plan by the Stockholders of Large Cap Growth
is required under its Charter, Bylaws or applicable law; and
(4) To the knowledge of such counsel, no consent, approval,
authorization or order of any federal or state court or
administrative or regulatory agency, other than the acceptance
of record of Articles of Transfer by the SDAT, is required for
the Acquired Fund to enter into the Plan or carry out its terms,
except those that have been obtained under the 1933 Act, the 1934
Act, the 1940 Act and the rules and regulations under those Acts
or that may be required under state securities laws or subsequent
to the Effective Time or when the failure to obtain the consent,
approval, authorization or order would not have a material
adverse effect on the operation of the Acquired Fund.
In rendering such opinion, Seward& Xxxxxx LLP may (i)rely on the
opinion of Xxxxxxx LLP as to matters of Maryland law, (ii)make
assumptions regarding the authenticity, genuineness and/or
conformity of documents and copies thereof without independent
verification thereof, (iii)limit such opinion to applicable
federal and state law, (iv)define the word knowledge and related
terms to mean the knowledge of attorneys then with such firm who
have devoted substantive attention to matters directly related to
this Plan and (v)rely on certificates of officers or directors of
the Acquired Fund as to factual matters.
(b) Large Cap Growth shall have received a letter from the
Adviser agreeing to indemnify Large Cap Growth in respect of
certain liabilities of the Acquired Fund in form and substance
satisfactory to Large Cap Growth.
11. Closing
(a) The Closing shall be held at the offices of the Funds, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XxxXxxx 00000, or at such
other time or place as the parties may agree.
(b) In the event that at the Valuation Time (a)the NYSE shall
be closed to trading or trading thereon shall be restricted,
or (b)trading or the reporting of trading on said Exchange or
elsewhere shall be disrupted so that accurate appraisal of the
value of the net assets of the Acquired Fund or the Large Cap
Growth is impracticable, the Closing Date shall be postponed
until the first business day after the day when trading shall
have been fully resumed and reporting shall have been restored;
provided that if trading shall not be fully resumed and
reporting restored within three business days of the Valuation
Time, this Plan may be terminated by either the Acquired Fund
or Large Cap Growth upon the giving of written notice to the
other party.
(c) Large Cap Growth will provide to the Acquired Fund evidence
satisfactory to the Acquired Fund that Large Cap Growth Shares
issuable pursuant to the Acquisition have been credited to the
Acquired Funds account on the books of Large Cap Growth. After
the Closing Date, the Large Cap Growth will provide to the
Acquired Fund evidence satisfactory to the Acquired Fund that
such Shares have been credited pro rata to open accounts in
the names of the Acquired Fund Stockholders.
(d) At the Closing, each party shall deliver to the other
such bills of sale, instruments of assumption of liabilities,
checks, assignments, stock certificates, receipts or other
documents as such other party or its counsel may reasonably
request in connection with the transfer of assets, assumption
of liabilities and liquidation contemplated by the Plan.
12. Survival of Representations and Warranties
No representations, warranties or covenants in or pursuant to
this Plan (including certificates of officers) hereto shall
survive the completion of the transactions contemplated herein.
13. Termination of Plan
A majority of either Funds Board of Directors may terminate
this Plan with respect to that Fund at any time before the
applicable Effective Time if: (i)the Funds conditions precedent
set forth in Sections 8, 9 or 10 as appropriate, are not
satisfied; or (ii)the Board of Directors determines that the
consummation of the Acquisition is not in the best interests
of the Fund or its Stockholders and gives notice of such
termination to the other party.
14. Governing Law
This Plan and the transactions contemplated hereby shall
be governed, construed and enforced in accordance with the
laws of the State of New York, except to the extent preempted
by federal law, without regard to conflicts of law principles.
15. Brokerage Fees
Each party represents and warrants that there are no brokers or
finders entitled to receive any payments in connection with the
transactions provided for in the Plan.
16. Amendments
The parties may, by agreement in writing authorized by their
respective Board of Directors, amend this Plan at any time before
or after the Stockholders of the Acquired Fund approve the
Acquisition. However, after Stockholders of the Acquired Fund
approve the Acquisition, the parties may not amend this Plan in
a manner that materially alters the obligations of the other
party. This Section shall not preclude the parties from changing
the Closing Date or the Effective Time by mutual agreement.
17. Waivers
At any time prior to the Closing Date, either party may by
written instrument signed by it (i)waive the effect of any
inaccuracies in the representations and warranties made to
it contained herein and (ii)waive compliance with any of the
agreements, covenants or conditions made for its benefit
contained herein. Any waiver shall apply only to the particular
inaccuracy or requirement for compliance waived, and not any
other or future inaccuracy or lack of compliance.
18. Indemnification of Directors
Large Cap Growth agrees that all rights to indemnification
and all limitations of liability existing in favor of the
Acquired Funds current and former Directors and officers,
acting in their capacities as such, under the Acquired Funds
Articles of Incorporation and Bylaws as in effect as of the
date of this Plan shall survive the Acquisition as obligations
of the Large Cap Growth and shall continue in full force and
effect, without any amendment thereto, and shall constitute
rights which may be asserted against Large Cap Growth, its
successors or assigns.
19. Cooperation and Further Assurances
Each party will cooperate with the other in fulfilling its
obligations under this Plan and will provide such information
and documentation as is reasonably requested by the other in
carrying out the Plans terms. Each party will provide such
further assurances concerning the performance of its obligations
hereunder and execute all documents for or in connection with
the consummation of the Acquisition as, with respect to such
assurances or documents, the other shall deem necessary or
appropriate.
20. Updating of N-14 Registration Statement
If at any time prior to the Effective Time, a party becomes
aware of any untrue statement of a material fact or omission
to state a material fact required to be stated therein or
necessary to make the statements made not misleading in the
N-14 Registration Statement, the party discovering the item
shall notify the other party and the parties shall cooperate
in promptly preparing, filing and clearing with the SEC and,
if appropriate, distributing to Stockholders appropriate
disclosure with respect to the item.
21. Limitation on Liabilities
The obligations of the Acquired Fund and Large Cap Growth
shall not bind any of the directors, Stockholders, nominees,
officers, agents, employees or agents of the Acquired Fund
or Large Cap Growth personally, but shall bind only the
Acquired Fund or Large Cap Growth, as appropriate. The
execution and delivery of this Plan by an officer of either
party shall not be deemed to have been made by the officer
individually or to impose any liability on the officer
personally, but shall bind only the Acquired Fund or
Large Cap Growth, as appropriate.
22. Termination of the Acquired Fund
If the parties complete the Acquisition, the Acquired Fund
shall terminate its registration under the 1940Act,
the 1933 Act, and the 1934 Act and liquidate and dissolve.
23. Notices
Any notice, report, statement, certificate or demand
required or permitted by any provision of the Plan shall
be in writing and shall be given in person or by telecopy,
certified mail or overnight express courier to:
For the Acquired Fund:
Alliance All-Market Advantage Fund, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
For Large Cap Growth:
AllianceBernstein Large Cap Growth Fund, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
24. Expenses
The Acquisition expenses shall be paid by AMA.
In Witness Whereof, the parties hereto have executed
this Plan as of the day and year first above written.
AllianceBernstein All-Market Advantage Fund, Inc.
Attest:
By:
Name: ______________________ Name: ______________________
Title: ______________________ Title: ______________________
AllianceBernstein Large Cap Growth Fund, Inc.
Attest:
By:
Name: ______________________ Name: ______________________
Title: ______________________ Title: ______________________
SK 00250 0205 824560
ablegal - 1404620 v1
